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Cuba Sanctions 2017

Policy Shift Stalls as Businesses Await OFAC Implementation

TRUMP SAID HE CANCELED OBAMA’S CUBA DIRECTIVE: Yet OFAC has not issued any amendments to the sanctions regime.

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US companies that engage with Cuba must informed on upcoming Treasury and Commerce revisions to sanctions regulations.

Due diligence is key to ensuring a company does not engage in trade with a restricted Cuban entity.

Most US companies will be unaffected by Trump's Cuba policy changes.

President Donald Trump’s issuance of a National Security Presidential Memorandum on Strengthening the Policy of the United States Toward Cuba on June 16 signaled a sweeping shift from the Obama-era Cuba policy that concentrated on ending the US’s longstanding sanctions program on Cuba and the Castro regime. That day, in a speech given in Miami, the president emphasized that the latest update in policy is motivated by a desire to restrict the flow of US currency to the military, security and intelligence apparatuses of the Castro regime.

While the Cuba memo sets out a basic framework of change for agencies such as the Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the Department of Commerce’s Bureau of Industry and Security (BIS), the memorandum did not have the force of an executive order. OFAC issued a press release designed to answer frequently asked questions about the modified sanctions in conjunction with the president’s announcement of a revised Cuba policy, and then later released an updated Cuba FAQs on July 25 to clarify the extent of those changes. According to the update, OFAC planned to issue the regulatory amendments in the “upcoming months” and that the announced changes will not take effect until these regulations are issued. The State Department also plans to publish a list of entities with which direct transactions will be prohibited.

However, as of October, OFAC has yet to issue any concrete regulatory amendments effectuating the changes described in the President’s June Cuba memo. This article seeks to detail the practical effects of the proposed amended sanctions regime as described by OFAC.

The changes will be implemented into the Treasury Department’s Cuban Assets Control Regulations, as well as the Department of Commerce’s Export Administration Regulations. However, OFAC noted that the policy changes will likely have little impact on most US businesses, as the revisions will not affect existing business contracts and licenses formed prior to the June announcement.

The most significant changes concern restrictions on 1) authorized individual travel, and 2) direct transactions with entities and sub-entities related to the Cuban military, intelligence or security services.

President Barrack Obama’s 2016 Cuba policy directive allowed the Treasury Department to ease its sanctions restrictions on individual “people-to-people” travel to Cuba, particularly for students and researchers. However, the new Treasury regulations will prohibit any individual travel that does not include academic study as part of a supervised degree or exchange program. Such educational trips will further be limited to group travel, and those groups will be required to “maintain a full-time schedule of educational exchange activities” intended to promote contact with the Cuban people and independence from the Cuban government.

The most significant changes for international trade concern the expansion of prohibited Cuban entities and sub-entities authorized to engage in direct transactions. The changes prohibit prospective travel arrangements or business engagements that involve such direct transactions with Cuban military, intelligence, or security services.

OFAC was directed to expand the definition of “prohibited officials of the government of Cuba,” while the State Department plans to publish a list of prohibited Cuban entities and sub-entities, both of which will help alleviate the encumbrance of due diligence required to scrutinize the true ownership of certain Cuban companies and organizations.

While OFAC will likely further define “direct transactions,” the Cuban military arm for state-run businesses known as GAESA controls large swathes of the Cuban economy, particularly in the tourism industry. US companies will likely be barred from financial transactions with the GAESA conglomerate and its affiliates or subsidiaries, including Gaviota, a GAESA division serving an estimated 40 percent of all foreign tourism in Cuba.

Importantly, however, OFAC asserted that companies who were already engaged with the now-prohibited entities prior to issuance of the new regulations “will be permitted to continue,” as long as the existing contracts and transactions were compliant with the Cuban Assets Control Regulations.

While it remains to be seen when and how these amended policies will be enforced, it is critical for US companies that engage with Cuba to stay informed on the upcoming Treasury and Commerce revisions to the current sanctions regulations. Conducting proper due diligence will be the key to ensuring your company does not engage in trade with a restricted entity. However, companies who have already legally conducted such a transaction as of June 16, 2017, or who do not plan to transact with the specified prohibited military, intelligence or security entities, will generally be unaffected by the Cuba memo’s announced changes.

In sum, despite President Trump’s June assertion that these changes are a complete cancellation of President Obama’s Cuba directive “effective immediately,” OFAC has yet to issue any binding regulatory amendments to the sanctions regime. More importantly, the amended regulations, when issued, will not significantly impact the majority of US companies.

Doreen M. Edelman is a shareholder and co-leader of the Global Business Team at Baker Donelson (Washington, D.C.). With more than 25 years of experience in import and export compliance, foreign investment and global expansion, she advises both US and foreign-based companies on international business matters.